It was small wonder, then, that he suddenly flung down his brush on the floor, said 'Bother!' and 'O blow!' and also 'Hang spring-cleaning!' and bolted out of the house without even waiting to put on his coat.

------------ Kenneth Grahame

Sunday, January 13, 2013

The Context of the Second Amendment

What was the second amendment about?
Two things. One is that the early Americans wanted to always be in a
position to overthrow the government. They had done it before and
they might need to do it again. The other is that they wanted to
secure their right to fight the Indians, locally and at once, without
getting permission from any central authority. Much of the bad
feeling between the colonists and the British Crown stemmed from the
Crown making treaties with Indian nations and attempting to enforce
them. As the colonists saw it, if they were liable to be murdered in
their beds, then they shouldn't have to wait for any central
government's permission; they should be able to call up a local
militia and go clear the savages out.

That's the context of the second
amendment. Here's the wording:

A well regulated militia being
necessary to the security of a free state, the right of the people to
keep and bear arms shall not be infringed.

Short and sweet. We're talking about
the security of a free state, not the security of individuals, and
moreover, we're talking about militias. Protection of the home
against thieves, rapists, or robbers was not a primary, or, so far as
I can see, even a secondary interest of the law. It's about raising
troops: and it has one eye to uppity Indians, and the other to uppity
central governments. If you and your neighbors want to stock a local
armory with some cannon and muskets, says this amendment, then no one
can stop you, so long as you're well-regulated, which means, I take
it, that you have a captain and officers and behave reasonably. You
can't just tear about the country pillaging; you have to be
responding to threats to the security of the state.

This emphasis on militias will strike
the reader as odd, if he's not aware of one further piece of context,
the one that makes all of this come into focus and make sense: this
law was intended for a country that had no standing army. Early
Americans disagreed with each other about as much – probably more –
than we do, but on one point they were nearly unanimous. A standing
army, they thought, would never do. It was an invitation to tyranny.
It's difficult for a modern American to comprehend just how
unmilitarized this country was, before the 20th
Century. For all intents and purposes, in between wars, the army
simply disappeared.

To my mind, the
second amendment has been overtaken by events. The Indians have been
thoroughly subjugated, where they haven't been exterminated. The
second amendment, as license for local warfare, has been so
thoroughly successful it isn't needed any more. Nobody frets about
Indian uprisings any more, or is ever likely to again.

As far
as overthrowing the central government is concerned, events have been
even more decisive. As the speed with which an enemy could reach and
attack us increased – it would have taken months or even years for
any credible enemy but the Indians to bring an army within reach of
us, in the 18th
Century; now it would take a few hours – it became obvious that we
needed a standing army, and moreover, we assumed an ever-escalating
number of foreign commitments and interests that needed military
weight behind them.

We now
have, not just a standing army, but a perfectly enormous one. It's
replete with intelligence and surveillance capabilities that are far
beyond the means of any private citizen. Its equipment is the envy of
the world. It could crush any internal uprising with ease, no matter
what kind of small arms our civilians might be toting. We long ago
lost the ability to rise against the central government. Even if we
were a people of great hardihood, fortitude, determination, and
discipline – and we are no longer notable for any of those
qualities – we could not stand against the resources and expertise
and organization of the U.S. military.

So the
second amendment has lost its political meaning. It retains only
those subsidiary meanings about the private ownership of weapons that
it has accreted over the years. The right it was concerned with was
the right to conduct local, ad hoc warfare. I don't know if I would
ever have thought that was a legitimate right, even in the 18th
Century: I have a rather conservative cast of mind, and a preference
for slow and orderly decision-making. But in any case, I don't think
it has much light to cast on present-day issues of gun control, which
are not about militias, but about whether people have a right to own
convenient means for rapidly killing large numbers of their
fellow-citizens in domestic – and totally unregulated –
situations. I don't think the second amendment addresses this. It's a
new situation, and it requires a new conversation.

8 comments:

Gil Crosby
said...

Well put and researched Mr. Favier...not that Fox news or your average NRA member would be impressed. I thought they also wanted to be able to call upon armed citizens in the form of a militia in case of further trouble from the powers of the day...especially the British Empire. This is the constitution, so we independent or on the verge. As for a standing army, we still had to have bond drives during WWII to fund the war effort. Then congress slipped us a fast one and started funding the military through taxes. I would love to have seen W at the head of a parade to raise bonds for the invasion of Iraq :)

Yes, I would love it if war appropriations had to be delivered directly to the people as direct, immediate taxes. "By the way, we'd like to invade Iraq, and your family's share of this for the current year will be $6,000, payable next week, please." Wars might be somewhat less popular if we did that.

Wish I had this for a reply when I was told by a US expat academic a few days agao that the right to bear arms is in fact a "cultural heritage" thing that everybody in the US is secretly or openly proud of.

Yes, it has been -- how would you put it? back-formed into one of the sacred rights of man, as conceived by Washington, Jefferson, etc. And there's a grain of truth in it: they believed, I think, that revolution was a sacred right, and that you needed to keep your arms close by in order to keep it.

I've been wanting to look into the Second Amendment, too. From what I've read so far, you're right on. Some of these militias would agree with you up to where you say events have overtaken the Second Amendment. How can good theory, they would ask, be overturned by the mere historical fortuity of the United States government's unparalleled military might? Perhaps some of the militias would argue that the Second Amendment justifies the ownership of weapons far more powerful than assault rifles -- weapons that could bring the government to its knees in case of a perceived state of war (Locke's term) between the people and its rulers.

As a good Lockean liberal, I believe in the right of revolution. Without it (as I read Locke) the nation's philosophical underpinnings fall away.

I've read an article or two attacking these new militias over their support for a right of revolution. To me, it amounts to a precious baby splashing in some mighty nasty bathwater.

Yes. If they were securing our freedom by having a dozen M-4s in the closet, we would have to respect them. But what's really securing our freedom is the honor and discipline of American military officers. Long may it last: and I wish the people who are accustomed to sneer at military people would remember it.

Indeed! As I guess I've written about ad nauseam, it was the Union army during our Civil War that defended our freedom (including our right to revolution) against the counterrevolutionary secessionists. These "Second Amendment remedies" people know not what manner of spirit they are of.